Appellant Bhupinder Singh Sondh is a native and citizen of India who
came to the United States in 1996 on a temporary visa. He was placed under
removal proceedings and sought various forms of relief. The procedural
background of his efforts to avoid deportation is somewhat complicated, and his
efforts were largely unsuccessful. See Sondh v. Gonzales, 2005 WL 319036
(10th Cir. 2005) (affirming removal order). However, in an unrelated matter, the
BIA decided a visa petition filed by Sondh's citizen wife should be reviewed, so
Sondh asked the BIA to reopen the removal case on this basis. The BIA denied
the motion.

Sondh now asks us to reverse the Board of Immigration Appeal's (BIA)
decision not to reopen removal proceedings. While Sondh's claims may warrant
consolidation before immigration officials, we conclude the BIA did not abuse its
discretion by denying Sondh's motion to reopen removal proceedings. We
therefore affirm, noting that the BIA retains discretion to reopen the removal case
to facilitate review of Sondh's wife's visa petition.

BACKGROUND

Sondh entered the United States in 1996. He overstayed his temporary
visa, and in October 1997, the government initiated removal proceedings against
him. During those proceedings, Sondh's first wife, Denise Allen, filed a visa
petition on his behalf, which was denied based on Sondh's failure to establish the
bona fides of the marriage. Subsequently, Sondh filed an asylum petition, which
was also denied.

Sondh appealed the asylum petition but did not appeal the denial of the
visa petition. While the asylum appeal was pending before the BIA (over two
years), Sondh was divorced and remarried. His second wife, LaDonna Mittelsted,
filed a second immigrant visa petition on Sondh's behalf. Before this petition
could be resolved, the BIA denied the asylum appeal in a March 19, 2003, order.

At this point, Sondh pursued two courses to challenge removal. First, he
appealed the asylum decision to this court. At the same time, he filed a motion to
reopen the removal proceedings before the BIA. The basis for this motion was
Mittelsted's pending visa petition.

Despite the pending visa petition, the BIA denied Sondh's motion to
reopen. Under In re Velarde-Pacheco, 23 I&N Dec. 253 (BIA 2002), the BIA
can exercise its discretion to grant a motion to reopen as long as certain criteria
are met. Id. at 256. However, one of those criteria--that the government not
oppose the motion--was not met. The BIA noted the government opposed the
motion on the ground that Sondh's "pending visa petition cannot be approved
because he previously sought to be accorded immediate relative status by reason
of a marriage determined by the Attorney General to have been entered into for
the purpose of evading the immigration laws."(1) R. at 90. Accordingly, the BIA
denied the motion on August 29, 2003, not because it agreed with the
government's view of the previous marriage, but because the government's
opposition took the case outside the realm of Velarde-Pacheco.

Sondh then appealed the BIA's denial of his motion to reopen, and we
consolidated that appeal with his earlier appeal on the merits of his asylum
petition. We denied both appeals in a prior opinion in this case. Sondh v.
Gonzales, 2005 WL 319036 (10th Cir. 2005).

While we were reviewing Sondh's first appeal from the BIA, immigration
authorities were reviewing Mittelsted's visa petition. Before we issued our
opinion, however, the immigration service denied the second visa petition on the
ground that Sondh's first marriage was fraudulently entered to circumvent
immigration laws. Sondh appealed that decision to the BIA, and on March 4,
2005, two months after we issued our opinion in Sondh's appeal, the BIA
reversed that determination because of an inadequate record and remanded with
instructions to adjudicate the visa petition.

Sondh then filed a motion to reopen the removal case(2) on the ground that
he would now be eligible to adjust status.(3)
The BIA denied this motion on the
ground that it was untimely, and Sondh appealed again to this court.

ANALYSIS

Sondh argues on appeal that the BIA erred in denying his motion to
reopen. Federal regulations authorize the BIA to grant a single motion to reopen,
filed by either party within ninety days of a final order. 8 C.F.R. § 1003.2(c).
We have jurisdiction under 8 U.S.C. § 1252(a)(1) and review this decision for
abuse of discretion. Infanzon v. Ashcroft, 386 F.3d 1359, 1362 (10th Cir. 2004).
The BIA abuses its discretion where its decision "provides no rational
explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements." Id.

Here, the BIA denied the motion to reopen on the ground that it was a
second motion filed after ninety days, and Sondh concedes that his motion was
untimely under the regulation. Thus, the BIA did not abuse its discretion in
denying Sondh's motion to reopen on this ground.

Sondh further argues that the BIA should have exercised its discretion to
reopen the case sua sponte to correct a miscarriage of justice. It is true that the
BIA may reopen a case at any time on its own motion. 8 C.F.R. § 1003.2(a).
However, "because there are no standards by which to judge the agency's
exercise of discretion," we have held that "we do not have jurisdiction to
consider [a] claim that the BIA should have sua sponte reopened the proceedings
under 8 C.F.R. § 1003.2(a)." Infanzon, 386 F.3d at 1361;
Belay-Gebru v. INS,
327 F.3d 998, 1001 (10th Cir. 2003). Accordingly, the BIA's decision is not
reviewable.

A closing comment. The apparently inconsistent orders from the BIA are
procedurally odd. Sondh's pending visa petition may result in his eligibility to
adjust status based on a valid second marriage, and the BIA has said that petition
should be adjudicated. Yet the BIA has ignored the posture of that petition in
these deportation proceedings. It stated: "the fact that an alien may have a
pending, or even approved, visa petition does not alter the filing deadlines or
other requirements for motions to reopen and reconsider set forth at 8 C.F.R.
§ 1003.2." R. at 3. While this statement may be true, if Sondh is truly entitled to
review of the visa petition, and more so if the petition has already been approved,
the BIA has discretion to reopen and review Sondh's order of deportation. The
facts of this case may well warrant such a result.

CONCLUSION

For these reasons, we AFFIRM the decision below. Although we lack
jurisdiction to direct the BIA to reopen the case, it retains discretion to do so
under 8 C.F.R. § 1003.2(a).

Entered for the Court

Timothy M. Tymkovich

Circuit Judge

FOOTNOTESClick footnote number to return to corresponding location in the text.

*. This order is not binding precedent, except
under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.

2. After examining the briefs and the appellate
record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

1. The government also opposed the motion
to reopen on unspecified
"discretionary factors." R. at 92.

2. In the same motion, Sondh also asked the
BIA to reconsider its August
29, 2003, ruling, which it declined to do. He does not appeal the denial of his
motion to reconsider.

3. It is unclear whether the visa petition was
ever approved, although
Sondh's April 8, 2005, application for adjustment of status based on an approved
visa petition suggests that it was.